THOMAS M. SEXTON v. BOARD OF REVIEW, DEPARTMENT OF LABOR and TOWNSHIP OF DEPTFORD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3226-07T33226-07T3

THOMAS M. SEXTON,

Appellant,

vs.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and TOWNSHIP

OF DEPTFORD,

Respondent,

________________________________________________________

 

Submitted December 10, 2008 - Decided

Before Judges Lihotz and Messano.

On appeal from the Board of Review, Department of Labor, Docket No. 167,164.

Thomas M. Sexton, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Township of Deptford has not filed a brief.

PER CURIM

Thomas M. Sexton appeals from the Board of Review's (the Board) final agency action denying his application for unemployment benefits, finding he left his employment without good cause attributable to the work, N.J.S.A. 43:21-5(a). We have considered the arguments he has raised in light of the motion record and applicable legal standards. We affirm.

On May 6, 2006, while on vacation in Cape May, Sexton, who was employed as a patrol officer in the Deptford Township police department (Deptford), drove his truck into a bridge. He was hospitalized for injuries he sustained and charged with driving while intoxicated (DWI) and possession of marijuana. Two days later, his attorney contacted Deptford and requested an "emergency medical leave" to attend a "treatment facility in Florida." Sexton remained at the facility until June 6, 2006, when he was discharged. The medical director for the facility indicated that Sexton had "successfully completed his course of treatment and [was] able to return to work with no restrictions."

Deptford, however, suspended Sexton without pay from the date of the accident, and, on January 25, 2007, he pled guilty to DWI. His driver's license was suspended for 210 days as part of the sentence. The CDS charge was dismissed. Deptford filed a preliminary notice of disciplinary action against Sexton on February 21, 2007, and despite his attorney's protestations, a hearing was not held on the departmental charges until April 4, 2007. Thereafter, on August 21, 2007, Deptford issued its final notice of disciplinary action, removing Sexton from office effective September 1, 2007. The specifications supporting the removal cited four violations of the police department's rules and regulations, specifically: 1) "[f]ailure to obey [l]aws and [r]egulations"; 2) "[i]ntoxicated off duty, not in uniform [and] arrested"; 3) "[i]ntoxicated off duty, not in uniform which [n]egatively affected the [p]olice [d]epartment"; and 4) "[f]ailure to maintain a valid N[ew] J[ersey] [d]river's [l]icense." On August 23, 2007, Sexton's driver's license was restored.

On September 9, 2007, Sexton applied for unemployment benefits. On October 23, 2007, the hearing officer issued his determination finding that Sexton was ineligible having been "discharged for conduct unbecoming of a police officer for [a] DWI conviction," and further noting Sexton's conduct was "punishable as a crime under the New Jersey Code of Criminal Justice." Sexton appealed to the Appeal Tribunal and a hearing was conducted on November 30, 2007.

The December 4, 2007 written decision of the Appeal Tribunal affirmed the hearing officer's determination. The Tribunal noted that defendant's blood alcohol level at the time of the accident was .262. Citing N.J.S.A. 43:21-5(b), the Tribunal determined that Sexton had "been discharged for misconduct connected with the work," and in particular "gross misconduct" because he had committed an "act punishable as a crime of the first, second, third or fourth degree[.]"

Sexton again appealed to the Board. In its February 4, 2008 decision, the Board affirmed and adopted the factual findings made by the Tribunal. However, the Board noted that Sexton's DWI conviction was not "an offense punishable as a crime," and, therefore, Sexton "was not discharged from [] employment for gross misconduct connected to the work[,] and N.J.S.A. 43:21-5(b) does not apply." Nevertheless, the Board concluded that Sexton was ineligible for benefits under N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.10, finding that he was "discharged for failure to possess a valid driver's license, a prerequisite of the employment, due to the act of driving under the influence," thus making him ineligible for benefits because he "left work voluntarily without good cause attributable to the work[.]" This appeal followed.

Sexton argues that a driver's license was not a prerequisite for his continued employment as a police officer, particularly in light of his twenty years of seniority with the department, which would have permitted him to perform functions that did not require him to drive. He also notes that on the date he was terminated, September 1, 2007, his license had been restored.

Sexton's other arguments are clearly without merit, Rule 2:11-3(e)(1)(E), or not appropriately raised in this proceeding. For example, Sexton argues Deptford failed to provide him with timely due process as to the disciplinary charges. However, by leave granted, we permitted the Board to supplement the record below to include a settlement that Sexton reached with Deptford regarding the appeal of his termination. Therefore, we focus solely on his claim that the Board erred in denying him benefits pursuant to N.J.S.A. 43:21-5(a).

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Generally speaking, we will "intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." George Harms Constr. Co. v. Tpk. Auth., 137 N.J. 8, 27 (1994). Only if the agency's action was arbitrary, capricious, or unreasonable should it be disturbed. Brady, supra, 152 N.J. at 210.

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989)(quotation omitted). Although the Act is remedial in nature, it is the claimant who bears the burden of proving entitlement to benefits. Brady, supra, 152 N.J. at 218. And, "[t]he basic policy of the [Act] is advanced as well when benefits are denied in improper cases as when they are allowed in proper cases." Yardville, supra, 114 N.J. at 374.

N.J.S.A. 43:21-5(a) provides:

An individual shall be disqualified for benefits:

(a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

The Supreme Court interpreted this provision in similar factual circumstances in Yardville. There, the claimant, a truck driver, lost his license as a result of a non-work-related drunk driving conviction. Id. at 373. When he informed his employer, he was terminated because no other work was available. Ibid. Although his initial claim was approved, and affirmed by us on appeal, the Court reversed, concluding that the claimant was not entitled to unemployment benefits pursuant to the statute. "Where it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to such work under N.J.S.A. 43:21-5(a)." Id. at 377; see also Mullarney v. Bd. of Review, 343 N.J. Super. 401, 407 (App. Div. 2001)(holding employee's surrender of his nursing license and subsequent termination from employment made him ineligible for benefits under the statute). Yardville's holding was codified by the Board in its regulation, N.J.A.C. 12:17-9.10(a), which provides "[i]f an individual is discharged due to the loss of a prerequisite license which is necessary to perform the duties of his or her employment, such discharge shall subject the individual to disqualification for benefits for voluntarily leaving work if he or she engaged in an act which resulted in the loss of the license."

Although Sexton argues having a driver's license was not a prerequisite for his job as a police officer, there is nothing whatsoever in the record to support such a conclusion. In fact, the evidence in the record supports the opposite conclusion as demonstrated by the testimony of Joann M. Strange, the chief municipal finance officer for Deptford. She unequivocally testified that a driver's license was a mandatory requirement for the position of police officer in the township. Moreover, in settling his administrative appeal from the disciplinary action that resulted in his termination, Sexton acknowledged that he had violated departmental rules and regulations by failing to maintain his driver's license in good standing. Thus, at the time of the final disciplinary action, Deptford's decision to terminate Sexton was based, in part, upon his inability to perform the necessary functions of his office by maintaining a valid driver's license. His termination from employment, therefore, was not for "good cause attributable to the work" and he was not entitled to benefits.

We concede that the procedural circumstances surrounding the departmental charges create an unusual result in that Sexton had his license restored two days after the final disciplinary action was issued by Deptford, and a few days prior to the effective date of his dismissal. But, we fail to see how that should affect the outcome. To paraphrase the Court in Yardville, Sexton's "unemployment [wa]s traceable directly to conduct for which he [wa]s responsible: his decision to drink and drive, made despite the knowledge that by risking his driving privileges he was endangering his livelihood as a [police officer]." Yardville, supra, 114 N.J. at 376.

Affirmed.

 

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A-3226-07T3

January 13, 2009